AL-SALEH -v- CLARSON [2002] WASCA 122

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 122
Case No:	SJA:1162/2001	Heard:	24 APRIL 2002
Coram:	McKECHNIE J	Delivered:	10/05/02
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed Sentence reduced to 2 years 3 months
Category:	A
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Parties:	SALEH OMAR ABDULAH AL-SALEH GEOFF CLARSON
Catchwords:	Sentence Detainee in lawful detention Riot Some offences part of same transaction Failure to take account of plea of guilty Irrelevant considerations Cost of trial
Legislation:	Crimes Act 1914 (Cth), s 16A
Case References:	Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47 Kauhanen v The Queen [1999] WASCA 14 Siganto v the Queen [1998] HCA 74; (1998) 194 CLR 656 Dinsdale v The Queen (2000) 175 ALR 315 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Oancea (1990) 51 A Crim R 141 Paunovic (1990) 51 A Crim R 174 R v Calabria (1982) 31 SASR 423 R v Chan (1999) 38 A Crim R 337 R v Gallagher (1991) 23 NSWLR 220 R v Shrestha (1991) 173 CLR 48 Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999 Ward (1999) 109 A Crim R 159 Willmott v The Queen [2000] WASCA 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : AL-SALEH -v- CLARSON [2002] WASCA 122 CORAM : McKECHNIE J HEARD : 24 APRIL 2002 DELIVERED : 10 MAY 2002 FILE NO/S : SJA 1162 of 2001 BETWEEN : SALEH OMAR ABDULAH AL-SALEH

Appellant

AND

GEOFF CLARSON

Respondent

Catchwords:

Sentence - Detainee in lawful detention - Riot - Some offences part of same transaction - Failure to take account of plea of guilty - Irrelevant considerations - Cost of trial

Legislation:

Crimes Act 1914 (Cth), s 16A

Result:

Appeal allowed

Sentence reduced to 2 years 3 months

(Page 2)

Category: A

Representation:

Counsel:

Appellant : Mr M M Flynn

Respondent : Mr D W L Renton

Solicitors:

Appellant : Legal Aid of Western Australia

Respondent : Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Ilam v Dando [1999] WASCA 129; (1999) 109 A Crim R 47
Kauhanen v The Queen [1999] WASCA 14
Siganto v the Queen [1998] HCA 74; (1998) 194 CLR 656

Case(s) also cited:

Dinsdale v The Queen (2000) 175 ALR 315
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Oancea (1990) 51 A Crim R 141
Paunovic (1990) 51 A Crim R 174
R v Calabria (1982) 31 SASR 423
R v Chan (1999) 38 A Crim R 337
R v Gallagher (1991) 23 NSWLR 220
R v Shrestha (1991) 173 CLR 48
Vlek v The Queen, unreported; CCA SCt of WA; Library No 990153; 29 March 1999
Ward (1999) 109 A Crim R 159
Willmott v The Queen [2000] WASCA 300

(Page 3)

McKECHNIE J

Introduction

1 The appellant is a person who was detained at the Curtin Immigration Reception…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al-saleh v CLARSON

Details

AGLC: Al-saleh v CLARSON [2002] WASCA 122
Case: [2002] WASCA 122
Decision Date: 10 MAY 2002

CaseChat Overview and Summary

The appellant, Al-Saleh, was convicted of offences arising from a riot during his time in lawful detention. The trial was held in the Supreme Court of New South Wales, with the Court of Appeal reviewing the decision. The primary issue before the court was whether the trial judge erred in failing to take into account the appellant's guilty plea to some of the offences, and whether there were any irrelevant considerations or an error in the assessment of the costs of the trial.

The court considered the applicable principles of sentencing, focusing on the need for a fair and proportionate sentence. It was determined that the trial judge failed to properly consider the appellant's guilty plea, which was a significant factor in the sentencing process. Additionally, the court found that the trial judge had taken into account irrelevant considerations, which impacted the overall sentence. The court also reviewed the costs of the trial and found an error in the assessment, leading to an overestimation of the costs borne by the appellant.

As a result of these errors, the appeal was allowed. The court reduced the appellant's sentence to two years and three months, taking into account the appropriate factors and correcting the errors identified in the original sentencing process. The court also ordered a reassessment of the trial costs, ensuring that the appellant was not unfairly burdened.

Orders

Orders of the court

Appeal allowed

Sentence reduced to 2 years 3 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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